Do restrictive COVID-19 rules violate the Charter?

We now live in a time of dog-walkers and joggers “lingering” in parks being ticketed, of people forced into quarantine in their own homes, and of a government planning the tracking of mobile phones of people for contact tracing.

It’s true the very first section of the Charter of Rights and Freedoms right off the bat says that rights are never absolute and can be subject to “reasonable limits.” It’s also the case that emergency powers give governments a lot of leeway. But are some restrictions on civil rights in this coronavirus era going too far?

“Courts are going to have to ask governments, listen, what else could you have done, are there other measures you could have taken?” Sujit Choudhry, a constitutional lawyer, said in an interview.

Choudhry says it’s cell phone tracking that worries him the most. He fears for privacy rights if people’s mobile phones are used for contact tracing, an epidemiological detective tool almost everyone agrees is needed to stop new infections from catching fire.

“I think that population level contact tracing is definitely on the table and the question is can you force people to do this …would (government) force everyone to download an app to their phone? Would Google or Android or Apple basically install at government’s insistence some type of tracking software on people’s phones involuntarily?” Choudhry asked.

Choudhry says he was taken aback by South Korea’s contact tracing as it was described in the New Yorker magazine last week. A downloaded mobile app details the user’s age, gender, neighbourhood, credit card transactions, routes taken and residences and businesses visited.

If the user tests positive for COVID-19, their recent movements are sent to other mobile phones within a 5 mile radius —enough information to possibly make the infected person identifiable or to make people shun the business the infected person may have visited.

“You can imagine in an extreme contact tracing platform that is basically an open book,” Choudhry said.

“That would be dystopian, but you can imagine all the questions that would pose. Because one thing we’ve learned historically is that information once it’s gathered, there’s always a temptation to use it for other purposes, once you’ve created these mass data bases, so who will want access to it? Tax authorities, law enforcement, employers.”

Canada hasn’t yet developed a tracing app for mobile phones. Last week, Innovation Minister Navdeep Bains told a news conference the government is looking at what’s happening in other jurisdictions.

“We want to make sure we also deal with issues in respect to privacy,” he said.

Another possible Charter hazard zone involves Section 7 of the Charter — the right to life. The government may have a Charter duty to protect health-care workers who must work in virus-laden conditions without adequate personal protection equipment. The duty could extend to the elderly in long-term care homes or women in danger when locked down at home with an abuser.

“Will there be some sort of constitutional class action by families or health support workers or both, and whether the government would be a party to that?” Choudhry asked.

At present, the government is ordering people travelling from outside the country to self-isolate in their homes under the Quarantine Act. But could government go further and mandate older citizens — those over 80, 70, or even 60 — to stay inside while the younger population is allowed to circulate in society?

“I think there would be a lot of constitutional questions under Section 15 — equality rights — as to whether such a measure would survive a constitutional challenge,” Choudhry said, since it could be argued the disease can strike both young and old alike, so why discriminate against the old.

As for ticketing people for sitting on park benches or meandering off pathways in parks, Choudhry thinks such measures are a lack of intelligent policing.

“Typically a police officer issues a warning and tries to educate individuals before they give them a ticket and that’s good policing and it also happens to be, from a constitutional standpoint, better.” he said.

“Is there a constitutional case here?’ Probably, there could be [on the grounds of] arbitrariness, a vague application of the law, excessive penalties.”

Chouldhry thinks the courts, once they’re back in session, may take a wide berth especially when judging the measures taken in the very early stages of the pandemic when little was known about how fast the disease might spread. But that might change.

“I think over time the degree to which courts will defer will diminish, particularly if individuals bring pretty compelling cases regarding other trivial enforcements of criminal law or impacts on their livelihood or inability to see a family member,” he said.

“I think a lot of questions will be raised about the bluntness of some of these instruments and whether there should be exemptions and whether there should be sunsets built into them.”